Durham man convicted of rape to get new hearing, could get new trial

Former Durham District Attorney Tracey Cline is accused of withholding evidence that could have helped a defendant's claim of innocence. Now, an attorney for David Yearwood is asking for a new trial.

Durham District Attorney Tracey Cline makes her case in front of Judge Carl Fox after she filed three motions to have Judge Orlando Hudson removed in the cases of Durham novelist Peterson; David Yearwood, who is challenging his 2000 sexual assault conviction; and Michael Dorman, whose murder charge was recently thrown out by Hudson.
SHAWN ROCCO - srocco@newsobserver.com

Judge Carl Fox questions the relevance of Durham District Attorney Tracey Cline's three motions to have Judge Orlando Hudson removed in the cases of Durham novelist Peterson; David Yearwood, who is challenging his 2000 sexual assault conviction; and Michael Dorman, whose murder charge was recently thrown out by Hudson.
SHAWN ROCCO - srocco@newsobserver.com

A convicted rapist is asking for a second chance, saying his lawyer and the jury that convicted him in 2000 couldn’t see or hear evidence a prosecutor kept hidden.

A judge on Friday heeded David Yearwood’s plea, in part, granting an evidentiary hearing this summer, after which he’ll decide if Yearwood is due a new trial.

An attorney for Yearwood says evidence not provided to him until 2011 gives a smattering of clues and contradictions that undermine the claims against him. Heather Rattelade says former Durham District Attorney Tracey Cline intentionally withheld evidence in 1999 and 2000, when she was an assistant district attorney.

Yearwood, 45, was convicted of raping a 12-year-old Durham girl whose family lived near him. He has insisted he was innocent since his arrest, but in 2000, a jury convicted Yearwood and sent him to prison for at least 25 years.

Yearwood’s case was featured in a 2011 N&O series, “Twisted Truth: A Prosecutor Under Fire,” which highlighted problems in Cline’s cases.

Cline was removed from office in March 2012 after a judge determined her behavior in numerous court filings critical of Superior Court Judge Orlando Hudson were “prejudicial to the administration of justice” and brought her office of district attorney into “disrepute.” Appelate courts have upheld her removal.

Cline has sued the newspaper for libel.

Among the items that Rattelade argues Cline never provided to Lawrence Campbell, Yearwood’s original attorney:

• Bench notes and reports from forensic scientists at the State Bureau of Investigation that show that Yearwood was not a contributor of any hairs found at the crime scene.
• The full statements an officer obtained from the victim and victim’s mother.
• Records from the Department of Social Services about the victim prior to the alleged rape detailing allegations of sexual violence against the child by her father.
• A statement made by the hospital nurse who examined the child that she found no vaginal tearing.
• A detective’s notes from an interview with a neighbor who describes two suspicious teens leaving the victim’s house before the alleged assault.

Rattelade said in a motion that Cline specifically directed her office not to provide the notes from the neighbor interview; an inventory of items has the words “not this” scribbled next to the interview notes regarding the neighbor’s testimony, Rattelade said.

“What is obvious from her own note in the file is that the prosecutor intentionally withheld that interview,” Rattelade said in her motion asking for a new trial.

In 2000, state law did not require prosecutors to share all of their evidence with attorneys for defendants, but federal law required them to turn over any evidence of innocence. Cline repeatedly told Yearwood’s attorney and a judge in the case that she had provided everything she had to Yearwood’s attorney, Rattelade said.

Battle over evidence

Rattelade secured a judge’s order in 2011 granting direct access to Cline’s file. Campbell, Yearwood’s attorney at his 2000 trial, said he did not receive vital pieces of information. With them, he said, he might have convinced a jury that Yearwood was innocent.

Two jurors from that trial signed affidavits filed Friday that say they wouldn’t have voted to find Yearwood guilty had they heard some of the information now available.

Cynthia Kenney, an assistant Durham District Attorney, said the court has nothing but the memory of Campbell to suggest Cline failed to provide evidence. Kenney also said that there’s nothing new that wasn’t known or couldn’t have been known.

“If you look at material she had, and compare it to the trial transcript, there’s nothing materially new or different that causes you to look at this and say it wasn’t a fair trial,” Kenney said.

Prior abuse allegations

Rattelade also argues that Yearwood is due a new trial because Betty Phillips, the child’s therapist, allegedly misrepresented her knowledge of the child’s prior sexual abuse at trial.

Phillips wrote to the N&O in 2011 that she had some knowledge of the child’s past. During a hearing at the time of the trial, she said that she only knew of the sexual assault the child alleged against Yearwood, though she was aware of issues with the family from treating another relative.

Kenney told the judge that none of the newly discovered pieces of evidence were intentionally withheld, nor did they have any bearing on defendant’s guilt. Campbell argued to a jury in 2000 that investigators had no physical evidence linking Yearwood to the crime or victim.

“This is all about him still complaining about trial strategy,” Kenney told the judge.

Rattelade countered: “The issue here isn’t about trial strategy, it’s about the strategy he was prevented from executing.”

Superior Court Judge Edwin Wilson has set an evidentiary hearing for Aug. 12. Rattelade said she intends to call Cline as a witness.

Focus on Cline

Cline was not in court Friday, and she could not be reached for comment. But during the hearing, Cline’s recent troubles were front and center.

“This motion is capitalizing on problems in Durham County. When you strip it down, none of that has anything to do with the facts of this case,” Kenney told Wilson.

Wilson pressed Kenney: “That may be, and if that’s the case, wouldn’t a full evidentiary hearing be to the benefit of the district attorney? I know you’ve got cases to try and you’re busy. It seems to be a full hearing is in the interest of justice.”